Franco v. The Nielsen Firm ((BDP) (2014 Cal. Wrk. Comp. P.D. LEXIS 35):
The applicant set the deposition of Kyle Nielsen, principle of the employer.
The matter came to hearing on the issue of the dispute whether the applicant’s attorney could take the deposition of Kyle Nielsen. Defendant argued that there was no good cause to take the deposition as the injuries were admitted, benefits were being paid, the employer was no longer a party pursuant to Labor Code § 3755, the deposition was improperly motivated by applicants allege personal grudge against the employer.
The WCJ ordered Kyle Nielsen, principle of the employer, to attend a deposition notice by applicant’s counsel.
The WCAB upheld the judge and found that because Kyle Nielsen was the employer’s principal and, as a likely percipient witness, applicant need not show good cause for a deposition to proceed and that Kyle Nielsen would not suffer significant prejudice or irreparable harm by submitting to the deposition. WCAB ruled deposition testimony may be relevant on issues such as permanent disability if he knows fax establishing severity of applicant’s injury, but the fact that Kyle Nielsen is no longer party is immaterial. Rather, it only means applicant must subpoena him to attend, and if no relevant questions are asked in a deposition, the defendant may seek costs and attorney fees pursuant to Labor Code § 5813. The defendant, however, cannot deny applicants discovery rights by refusing to attend the deposition.